Citation Nr: 22014457 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-35 330 DATE: March 14, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a depressive disorder is denied. FINDING OF FACT The Veteran's psychiatric condition is not etiologically related to his active military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to June 1979 and from September 1982 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board remanded the claim on appeal in February 2021 for additional development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and a depressive disorder The Veteran contends that his psychiatric condition is related to his active military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Establishment of service connection for PTSD in particular requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be in conformance with the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV) criteria. Effective March 19, 2015, VA replaced outdated references with references to the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5). However, these provisions only apply to cases received by or pending before the AOJ on or after August 4, 2014. In this case, the Veteran's petition to reopen the claim for a psychiatric disorder was received by the AOJ after August 4, 2014; therefore, the regulations pertaining to the DSM-V are for application. For the reasons that follow, the Board finds that service connection for a psychiatric disorder, to include PTSD and depression, is not warranted. Depression For depression, the first element of service connection has been established. The evidence of record does indicate that the Veteran has a current diagnosis of major depressive disorder. See private treatment records; records from the Social Security Administration; May 2021 VA fee-based opinion. Turning to the second element of service connection, the Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnoses related to depression. On all of his Reports of Medical History, the Veteran reported "no" to "depression or excessive worry" as well as "frequent trouble sleeping." As discussed in the February 2021 Board remand, the Veteran contends that his psychiatric condition is related to three incidents in service, specifically, 1) being discharged from service, 2) witnessing a motorcycle accident (MVA) during which the victim was decapitated, and 3) a shooting of a girlfriend and suicide of her estranged husband. As explained in the February 2021 Board remand, the Board finds that the most persuasive evidence of record weighs against a finding that the Veteran was involved in and/or witnessed the reported shooting. The Board finds that the reported MVA is not verifiable as the Veteran has provided all of the information he knows and such is not enough to verify the incident. See March 2018 Statement in Support of Claim for PTSD (reporting he did not know the victim); April 2018 VA letter (requesting additional necessary information, including the name of the victim); November 2020 hearing transcript (providing the same information as previously reported); February 2021 Board remand. Although the Board has found that the reported MVA is not verifiable, such incident does not need to be verified in order to be the basis of a grant of service connection for a psychiatric condition other than PTSD, to include a depressive disorder. As such, in its February 2021 remand, the Board requested an etiology opinion that addressed whether the Veteran's depressive disorder was related to his discharge from service or the reported MVA. Pursuant to the remand, an etiology opinion was obtained May 2021. The examiner reviewed the evidence of record and opined that it was less likely than not that the Veteran's depressive disorder was related to his discharge from service or the reported MVA. The examiner explained that the record shows that the Veteran was first diagnosed with a depressive disorder in February 2009 during his Social Security Administration disability evaluation, which was approximately 20 years after the reported MVA and discharge from service. The examiner also explained that there is no evidence of depression symptoms during the Veteran's military service or within the one year following his discharge. The examiner also noted that there was no evidence of depression symptoms, diagnosis, or treatment in his inactive duty STRs in the 1990s and no documented depression until 2009. Thus, he concluded that there was no nexus between the Veteran's current depressive disorder and service. The Board finds this opinion, supported by a rationale based on an accurate medical history with clear conclusions and supporting data, is highly probative. Nieves-Rodriguez, 22 Vet. App. at 304. In coming to this conclusion, the Board acknowledges that the May 2021 opinion primarily relies on the absence of evidence of depression symptoms in the Veteran's STRs as well in the time period following service. While the Board is mindful of the holding in Dalton v. Nicholson, the Board finds this case distinguishable as the examiner did consider the Veteran's reported in-service incurrences (i.e., his discharge from service and MVA). 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). Additionally, although the examiner did not consider the Veteran's reports of feeling sad after discharge or report of having nightmares in service, as will be explained below, the Board finds such statements to be of no probative value. While the Veteran has reported that he felt sad after his discharge and indicated that he had nightmares in service, the Board finds the evidence contemporaneous to his service more reliable in regard to the state of his health. In this regard, as noted above, the Veteran denied experiencing "depression or excessive worry" as well as "frequent trouble sleeping" on all Reports of Medical History throughout his service, including on his 1993 Report of Medical History after his active service discharge and during his Reserve service. Additionally, to the extent the Veteran has reported that he experienced nightmares about the reported shooting, as described above and in the February 2021 remand, the Board finds that the Veteran was not involved in, nor did he witness, that incident. Moreover, in light of the Veteran's inconsistent reports during the pendency of this appeal, to include those relating to the reported shooting, the Board finds that the Veteran is not a reliable historian. Accordingly, the Board assigns no probative weight to the Veteran's reports of experiencing sadness after service and nightmares in service. Additionally, while the Veteran believes his depressive disorder is related to his active service, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). PTSD Turning to the first element of service connection, while there is conflicting evidence of record regarding whether the Veteran has a diagnosis of PTSD, the Board finds that the persuasive evidence of record weighs against finding that the Veteran has a current diagnosis of PTSD. While a March 2014 VA treatment record shows that a VA treating psychiatrist provided a provisional diagnosis of PTSD, a subsequent April 2014 VA treatment record shows that following an in-depth PTSD assessment, it was determined that the Veteran did not meet the full criteria for PTSD pursuant to the DSM-V. Additionally, although a March 2018 VA examiner diagnosed the Veteran with PTSD, a review of the examination report shows that the diagnosis was based on an unverifiable stressor. See also February 2021 Board remand. The Veteran subsequently underwent a VA fee-based examination in May 2018 at which time the examiner found that the Veteran did not meet the criteria for PTSD. The examiner explained that while the Veteran endorsed every symptom on the PTSD checklist, many of the symptoms were not consistent with true PTSD symptoms or the clinical interview. The examiner further noted that while the Veteran endorsed nearly every symptom on paper, he could not provide examples of symptoms or describe genuine symptoms. Following the Board's February 2021 remand, a VA fee-based opinion was obtained in May 2021 from a psychologist. The examiner reviewed the conflicting evidence of record and opined that a diagnosis of PTSD had not been established. A cogent rationale was provided for the opinion. The Board finds this opinion is highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Board acknowledges the 2019 and 2020 VA treatment records that show a diagnosis of PTSD, the evidence of record indicates that such diagnosis was made by a licensed clinical social worker, who does not necessarily have the medical education and training of a psychologist or a psychiatrist. See also November 2020 statement from N.M., LCSW. Moreover, the VA treatment records noting a diagnosis of PTSD were considered by the May 2021 examiner who nonetheless found that that the Veteran did not have a diagnosis of PTSD. See May 2021 opinion (acknowledging that VA providers have continued to diagnose him with and treat him for PTSD). The Board also acknowledges the Veteran's general contention that he has PTSD. However, the Veteran is not competent to provide such a diagnosis as diagnosing PTSD is a medically complex issue, and the Veteran does not possess the required training. Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify"). In light of the foregoing, the Board finds that the most competent and probative evidence of record weighs against a finding that the Veteran has PTSD. Alternatively, although the Board has found that the Veteran does not have a current diagnosis of PTSD, even if the Board were to assume, without conceding, that he does have such diagnosis, the persuasive evidence of record still weighs against a finding that it is related to service. First, as noted above, the Board has found that the Veteran did not witness and was not involved in the reported shooting. Second, while the March 2018 VA examiner diagnosed the Veteran with PTSD based on the reported MVA, as explained above, such stressor is not verified and cannot be verified. In the absence of a verified stressor event, service connection for PTSD cannot be granted. 38 C.F.R. § 3.304(f). Third, with regards to the discharge from service alleged stressor, the May 2021 VA fee-based examiner noted that such did not meet the DSM-V criteria for a traumatic event. See also April 2014 VA PTSD assessment. Thus, even if the Board were to assume the Veteran had a diagnosis of PTSD, the persuasive evidence is against a finding that such is related to service. The Board also acknowledges the Veteran's diagnoses related to substance abuse disorders. However, service connection for substance abuse cannot be awarded based on a direct theory of entitlement. Based on the foregoing, service connection for a psychiatric condition, to include PTSD and a depressive disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the persuasive evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.